§ 10.7 p.m.
§ Mr. John Foster (Northwich)
I beg to move,That an humble Address be presented to Her Majesty, praying that the Order in Council, dated 26th June, 1961, entitled the Foreign Compensation (Poland) (Nationalisation Claims) (Amendment) Order, 1961 (S.I., 1961, No. 1196), a copy of which was laid before this House on 30th June, be annulled.In November, 1954, an agreement was made between the Polish and British Governments providing for compensation for the property of British subjects in Poland which had been nationalised, and I believe that the fund now stands at between £2 million and £2½ million.
An Order in Council was made which provided that British subjects could claim before the Foreign Compensation Commission in respect of properties which had been nationalised.
A certain number of claims were put in, and the next thing that happened was that the House of Lords decided that the descendants of the Electress Sophia were British subjects. This meant that a number of German princes were held to be British subjects, and six German princes put in claims before the Foreign Compensation Commission, as also did Mr. Friedrich von Preussen. About eighteen months later an Order in Council was passed providing that the descendants of the Electress Sophia, in other words, those persons who were deemed to be British subjects under the decision of the House of Lords, should be excluded from making any claims on the fund.
This was quite natural, because it was obviously undesirable that persons in Germany should make a claim on this fund, which was meant to compensate British subjects. Mr. von Preussen had a claim before the Commission, and he is a descendant of the Electress Sohpia. So the position was that there were seven claims before the Commission, six by the German princes who claimed to be British subjects 490 under the decision of the House of Lords, and the claim of Mr. von Preussen.
An Order in Council was then passed providing that the descendants of the Electress Sophia were excluded from making any claim on the fund, so when the claims of the six German princes were made the legal officer of the Commission made an answer saying, "These are excluded by the Order in Council made in 1958." That Order in Council was a complete answer to their claims, and they abandoned them. It is noteworthy that Mr. von Preussen's claim was not met by this answer. The legal officer did not say, in answer to his claim, "You are excluded from claiming on the Commission because you are a descendant of the Electress Sophia."
§ Mr. Foster
The reason was that Mr. von Preussen had been naturalised, and he claimed by virtue of his naturalisation, and in the 1958 Order it had been provided that the persons excluded were persons who claimed only by virtue of the Act of Settlement. So obviously Mr. von Preussen had a claim, because he was not claiming only by virtue of the Act of Settlement but also by virtue of his naturalisation as a British subject in 1947.
From 1958 to 1961 he proceeded with the preparation of his claim. He spent large sums of money in establishing the value of his claim, obtaining legal advice, and in due course his claim came before the Commission. It was admitted, and he was awarded about £632,000, which, scaled down by dividend, will amount to between £30,000 and £50,000. The order of the Commission allowing his claim was made subject to review up or down, and for any legal point to be taken, rather like a decision of a judge of first instance, subject to appeal.
But before the appeal could be heard, which was fixed, I believe, for 18th July, 491 1961, the Commission wrote a letter to Mr. von Preussen in which it said:Gentlemen, Friedrich G. W. C. von Preussen. I am directed by the Foreign Compensation Commission to confirm the writer's telephone conversation of 3rd July, informing you of the coming into operation of two new Poland Amendment Orders.I will miss out the next paragraph because it refers to debts. This is concerned with a claim.
The Foreign Compensation (Poland) (Nationalisation Claims) (Amendment) Order, 1961 (S.I., 1961, No. 1196)"—that is the one which is prayed against—amends paragraph 3 of Article 12 of the Foreign Compensation (Poland) (Nationalisation Claims) Order, 1956, as previously amended, by the insertion of the words: 'at any time' between the words: 'a British subject' and the words: 'before the date'.In view of these Amendment Orders you may think that it will not be possible for the existing Provisional Determination in favour of your client to be confirmed. In these circumstances I am to inquire whether you still wish for an Oral Hearing on Review. The original date fixed for the Hearing on Review is cancelled so as to give you time to consider the position and if so advised, to consult Counsel. Leave is given you, if you so wish, to submit a written argument to support your client's claim, or if you still wish for an Oral Hearing on Review, a fresh date will be fixed some time in October.The effect of that was to deprive him of his success before the Foreign Compensation Commission. The umpire changed the rules in the middle of the game. He had won his case. It was as if he had won in the county court and the Government had passed a law saying "You have not won, and you cannot go to appeal. We dare not risk you going to appeal, because you might win" If the House is interested in how it works, it is that they said that anybody who was a descendant of the Electress Sophia would be unable to claim, even though he were a British subject otherwise, if at any time he had been a British subject by virtue of the Act of Settlement.
I should have thought that this wording would deprive even persons who were born British subjects, any descendant of Queen Victoria or the Electress Sophia for that matter; anybody in England would have been deprived of their claim because they would have been a British subject under the Act of Settlement. But that really does not matter because the 492 only person in the world whom this Order in Council affects is Mr. von Preussen. He is the only one who was a descendant of the Electress Sophia and has been naturalised and who had a claim before the Commission. So the Government passed an Order in Council and the Commission writes to say, "I dare say that you do not want to have an appeal because a law has been passed depriving you of the fruits of your victory."
We must remember that he had put this claim forward at least by 1958; that the Commission and the Government, had they cared to look at the claims, would have known of his claim from 1958. He was allowed to go on preparing his claim about the amount to which he was entitled until 1961 when he succeeded before the Commission and got an award for £632,000 which, as I said, when scaled down, would be somewhere between £30,000 and £50,000. Then there was the oral hearing fixed for review for 18th July, and on 3rd July the Order in Council was brought into force against which we are praying.
The objection to this legislation is quite obvious. It is that it is discriminatory and retrospective. It is retrospective because it says, "at any time"—any time from the time of a person's birth, it is retrospective right back. It is discriminatory because the only person affected by this Order, in my submission, is Mr. von Preussen. I know that on both sides of the House there are hon. Members who have very strong feelings about retrospective legislation. I remember an hon. Member opposite making a speech in a critical debate on the Finance Bill. I know that on both sides of the House hon. Members object to retrospective legislation. When I add to that that this is retrospective to meet the successful claim of a particular person, I submit that it is something which ought to be rejected.
It has been suggested that the Government will maintain that this Order is to cure an error. It is suggested that Mr. von Preussen is one of the princes and therefore we have to correct an error, but in my submission that is not an answer, because here there has been no error. Mr. von Preussen is already a British subject by virtue of his naturalisation. It is perhaps permissible to cure a defect of legislation 493 when a person's rights are not affected, but when someone has already gained something as a vested right—and the fact that it is subject to review does not make any difference—to deprive him of something is quite wrong.
§ Mr. Sydney Silverman (Nelson and Colne)
Can the hon. and learned Member say whether this gentleman's litigation in order to establish his right to be a British subject had any other object than to enable him to claim compensation under these arrangements?
§ Mr. Foster
The answer to the hon. Member for Nelson and Colne (Mr. S. Silverman) is that I do not think that Mr. von Preussen was the person who brought the action in the House of Lords. He was naturalised and I think it a tribute to the fact that he was anti-Nazi, which is shown by the fact that he was naturalised in 1947 when anyone of German nationality had to pass very rigorous tests to be naturalised under the Government of that day. We can be quite sure that anyone whose political point of view was not unexceptional would not have been naturalised.
This is not curing an error simpliciter. It may be that the Government never intended Mr. von Preussen to succeed in his claim, but he did succeed before the Commission and he has been deprived of it. It seems very wrong that legislation should be passed depriving a man of a successful claim which he has obtained in what is a judicial tribunal.
For those reasons, I move this Motion.
§ 10.23 p.m.
§ Mr. Gilbert Longden (Hertfordshire, South-West)
I need add very few words to those which my hon. and learned Friend the Member for Norrthwich (Mr. J. Foster) has given the House. I do so only as a result of an interjection by an hon. Member opposite.
It does not matter to me who the victim of this alleged miscarriage of justice is. I am totally uninterested both in his pedigree and in his bank balance. If he had been a laundry worker I should feel exactly as I do now about it. There appears to have been a miscarriage of justice and there appear to have been two things which I thought were 494 anathema to the party to which I belong, first, an interference by the Executive with the judiciary and, secondly, retrospective legislation.
I add those words to those of my hon. and learned Friend and beg the House to support this Motion.
§ 10.25 p.m.
§ The Joint Under-Secretary of State for Foreign Affairs (Mr. Peter Thomas)
I rise at this time because it may be convenient for the House and is probably the desire of my hon. and learned Friend the Member for Northwich (Mr. J. Foster) that at the beginning of the debate I should put the Government's case. My hon. and learned Friend has given a very fair summary of the background to this Order. Perhaps I may be permitted to repeat much of what he said, with certain embellishments which possibly put the case in a slightly different category.
In 1954, as he said, a financial agreement was signed by Her Majesty's Government and the Polish Government which provided, among other things, for the payment of £2,665,000 in full and final settlement of claims in respect of British property in Poland which had been nationalised. An Order in Council was made in April, 1956, providing for the assessment and payment of these claims by the Foreign Compensation Commission out of this fund. The money is being paid by instalments.
Before negotiating this agreement Her Majesty's Government had, of course, tried to obtain the most complete information about the amount and value of British property which had been affected. They realised, of course, that almost inevitably there would be a certain number of claims of which they knew nothing, and account was taken of this. What they did not know, and accordingly neither did nor could make any provision for, was that a large number of members of German princely Houses were, as living Protestant descendants of the Electress Sophia of Hanover, British subjects by virtue of an Act of 1705. They did not know this because it was not until several years later, on 5th December, 1956, that this was established by the House of Lords in the case of Prince Ernst Augustus of Hanover.
495 All these persons suddenly became potentially eligible to share in this compensation. There were about 400 in number, and before the closing date for the filing of claims on 24th April, 1957, nine—I think this is the correct number—had submitted claims to the Foreign Compensation Commission. The value of the property involved was not given, but from its nature it was clear that it would be many millions of pounds.
I am sure the House will agree that it was obviously unjust that these people, on behalf of whom Her Majesty's Government had not negotiated and indeed could not have negotiated, and for whom they had received no compensation, should now be allowed to participate in the small fund available. If they participated, they would do so at the expense of the other claimants, many of them small claimants, for whom the compensation had been received and who in any event could expect to retrieve only a small percentage of their losses. I think that it has been agreed by my hon. and learned Friend, and that the House will agree, that it is right and just that this category of persons should be excluded.
§ Mr. Ronald Bell (Buckinghamshire, South)
My hon. Friend said the Government could not have known of the existence of these people. The Act of 1705 was not a little private Act. It was the Act of Settlement, which was fairly common knowledge.
§ Mr. Thomas
I suggest that at some time my hon. Friend should read the very interesting judgment of the House of Lords in the case. He will find, I think, that there was a decision by a majority in the House of Lords and a decision by a majority in the Court of Appeal, and that the only time when there was unanimity was in the court of first instance. I think that he will find that it is an extremely complicated case. Certainly the Government did not anticipate the decision which was made in this case.
In any event, I think that it will be agreed by the House that it would not be right for these people to be included. There was considerable outcry at even the possibility of their participation in this fund. The matter was raised in this House, there were letters in the 496 Press and there were representations by organised bodies of the claimants. Accordingly, in April, 1958, an amending Order was made and duly laid before this House with the intention of excluding from participation any person who, to establish a claim, had to rely on British nationality acquired by virtue of the Act of 1705.
If the House will bear with me, these are the words of this particular Order. They excluded… an individual who was a British subject before the date of the commencement of the British Nationality Act, 1948, only by virtue of the provisions of the Act of 1705.Those words "only by virtue", were words which, of course, subsequently became of great importance in the case of Mr. von Preussen, or Prince Frederick of Prussia as he is sometimes known—
§ Mr. Thomas
I think that it is right to say that no one, even the persons affected, has ever questioned the justice of that Order and, as my hon. and learned Friend said, none of the claimants pursued their claims except Mr. von Preussen. But he was—and I should like to emphasise this—in a different position from the others in that he had applied for British naturalisation and had been granted an ordinary certificate of naturalisation on 27th October, 1947. Up to then, of course, he was regarded—and, indeed, regarded himself—as an alien.
Obviously, no claim of his was discussed during the negotiations leading to the agreement. Nevertheless, if he were able to establish that the grant of the certificate of naturalisation had been effective to give him British nationality and, further, to establish that his property had been taken after the grant of the certificate, he would have come within a category of persons for whom Her Majesty's Government had negotiated, and he would have been eligible to establish a claim without in any way relying on the Act of 1705. Had he succeeded in doing this, nothing would have been done to deprive him of his success. He obviously had to be given an opportunity of doing this, and the only way in which it could be done was 497 by having his claim determined by the Foreign Compensation Commission.
The Commission provisionally determined that he received British nationality by the grant of the certificate of naturalisation in 1947, but that his property had been taken in 1946, before the grant of the certificate. He did not, therefore, fall into any of the categories of British subject for whom Her Majesty's Government had negotiated or received compensation. Nevertheless, the Commssion also provisionally determined that, by reason of the grant to him of a certificate of naturalisation in 1947, he was, before the date of the British Nationality Act, 1948, a British subject not only by virtue of the Act of 1705, and he was therefore eligible to apply.
This produced a situation which quite clearly the amending Order had not, and indeed in my view could not, have contemplated. He was not eligible to claim under his naturalisation certificate because his property had been seized before that date. But since, by virtue of the Act of 1705, he was British in 1946, he was technically eligible. In other words, his eligibility depended on the very factor that was intended should exclude him. What was intended to be a disqualification enabled him, provisionally, to succeed. It was in these circumstances that the present Order was made.
Perhaps I may now deal quite shortly—because I do not want to keep the House—with the matters referred to by my hon. and learned Friend. The objections that he puts to this Order were certainly twofold and, may be, threefold. He said that it was discriminatory, that it was retrospective, and I think that the general content of his speech was that the Order was in every way unjust. Perhaps I could just briefly refer to some of those matters.
When he was talking about retrospection, he said that it was a deprivation, I think, of a vested right. I think there is a misconception here. The charge that it is retrospective and is a deprivation of a vested right appears to be based on the misunderstanding that Mr. von Preussen had obtained a final decision on his claim which, but for this Order, would automatically have resulted in his receiving payment of compensation. This is not so. There had 498 been a provisional determination only of his case which, by the Rules of the Commission, had to be reviewed before it could become final. I disagree with my hon. and learned Friend when he gives as a simile the example of a person winning his case in the court of first instance and being deprived of his right of appeal. It is not. He has not won his case in the court of first instance before going on to appeal. It is a review of the case for ultimate determination in November. That review has not even yet taken place.
It is possible, to put it no higher, that even if this Order had never been made, the Commission upon review would have reversed its provisional determination and rejected the claim. It is known that some claimants have sought to oppose it at the review, which is to take place on 7th November, 1961.
I submit that it cannot, therefore, be properly said that Prince Frederick has been retrospectively deprived of the fruits of a success which he had already achieved. The provisional determination is in reality no more than an indication of what the final determination may be. The provisional determination in this case was clearly contrary to the clear intention of the Order of 1958. The Order of 1961 was therefore made to ensure that this intention should prevail when the claim came up for review; and that is why it was made before and not after the claim had succeeded.
§ Mr. W. R. Rees-Davies (Isle of Thanet)
Would my hon. Friend deal with these two matters? First, why was this applicant allowed to go on with his case in the years 1959 and 1960, when it first became apparent that this position would arise? Secondly, if one is coming possibly to a compromise, are Her Majesty's Government willing to pay him the costs arising from what must admittedly be their own negligence? Will they make some offer of that kind ex gratia, which might affect the minds of some hon. Members here?
§ Mr. Thomas
I am sorry that I did not make myself clear to my hon. Friend. I think I said that if, in fact. Mr. von Preussen had been able to prove, first, the effectiveness of his certificate of naturalisation, and, in 499 addition, that his property had been seized after he received that certificate, then he would have been able to claim outside his claim under the 1705 Act. That is, in fact, why he went on, because he was in a different position from all the other people who were claiming solely by virtue of their nationality under the 1705 Act. As to the question of costs, I will certainly deal with that before I resume my seat.
On the question of discrimination, which was raised by my hon. and learned Friend, I will admit that in one sense the word "discriminatory" can be applied to this Order, but it can be applied equally to any form of legislation which, by laying down criteria of eligibility, necessarily excludes and so discriminates against those who cannot satisfy them. As I have already said, no one has questioned the justice of excluding from a share in this compensation persons for whom it was not obtained.
This Order does no more than ensure that this just exclusion is effective in all cases and that a technicality is not allowed to add a further injustice to the injustice which the 1958 Order was intended to prevent—the further injustice of allowing the disqualification to operate in all cases except one, and that is the case of Mr. von Preussen. I would suggest that if that were so, that would indeed be discriminatory in a sense that deserves condemnation.
As to the injustice referred to and the question of costs raised by my hon. and learned Friend, I cannot agree that there has been any injustice in allowing Mr. von Preussen to incur costs in obtaining a provisional determination before making a further Order. I tried to explain exactly how he might have succeeded and would have been supported if he had succeeded in the first place. He must, from the making of the 1958 Order, have been fully aware that it was not intended to allow anyone to establish a claim if to do so he had to rely on British nationality acquired by virtue of the Act of 1705.
If anyone had deliberately tried to defeat this clear intention by a technicality and had incurred costs in doing so, he would deserve no sympathy if he were left to bear them. But this was 500 not so in Prince Frederick's case. As I have already explained, if he had been able to prove the effectiveness of his naturalisation certificate and the fact that his property was seized after the certificate, it is possible that he might have been able to establish a claim quite independently of the Act of 1705. It would indeed have been an injustice to have deprived him of that chance by making an Order excluding him before the Commission had had an opportunity of giving a provisional determination on that issue.
Nevertheless, I agree that it is hard that he should have to bear the full cost of clarifying the position, as, indeed, the clarification of the position has been helpful to us. I should like to assure the House that we have great sympathy for Mr. von Preussen in the special circumstances.
§ Mr. J. Grimond (Orkney and Shetland)
I want to ask the hon. Gentleman two questions of fact. Firstly, do I understand from the Minister's statement that had Mr. von Preussen—if that is his name—been effectively naturalised before his property was nationalised, the Government would have paid in spite of the fact that they say that it is not intended for this class of person at all? Secondly, can the hon. Gentleman explain how the Commission ever found in his favour? If he was debarred because his property was nationalised before his naturalisation was effected and if he was debarred because of the Order, how did the Commission ever come to find in his favour?
§ Mr. Thomas
I can quite understand why the hon. Gentleman might find this difficult. It is extremely complicated, but I will try to put it as simply as I can. It is not a simple matter. First, Prince Frederick applied for his naturalisation certificate. It was granted in 1947. Up to then he had thought that he was an alien. He had no idea that he was British. Then, some time later, the House of Lords determined that certain people were British by virtue of the Act of 1705. Therefore, he then found that under the 1705 Act he was British ever since he was born. It may well be that his naturalisation certificate then became null and void. But that point was not taken. It is a very important point.
501 The Commission found that Prince Frederick did not come within the Order which excluded all the descendants of Princess Sophia because of the words which I mentioned, which were:Only by virtue of the provisions of the Act of 1705.Therefore, the Commission found that he was a British subject at the time that his property was taken and was a British subject under the Act of 1705. Therefore, the very fact that disqualified him, being a British subject under the Act of 1705, according to the determination of the Commission meant that he was eligible to succeed, and that, I suggest, is a matter which obviously has to be put right, and is being put right in this Order. Before the hon. Gentleman the Member for Orkney and Shetland (Mr. Grimond) intervened I was mentioning the subject of costs.
§ Mr. John Hobson (Warwick and Leamington)
This may all be relevant, but why did the Government try to put it forward before the provisional review is determined by the Commission? Why could not the Commission determine it instead of this House?
§ Mr. Thomas
I have already dealt with that. I said that it is necessary to make it perfectly clear what was the intention of that 1958 Order.
If I may now come to the question of costs. As I said, in the circumstances and as an exceptional measure, the Government have made an offer and, I suggest, a very generous offer, to contribute to the costs which Mr. von Preussen incurred up to the provisional determination. I am sure that he will consider this matter very carefully.
I must make it clear that the fund made available by the Polish Government under the 1954 Agreement was not intended either by the Polish Government or by Her Majesty's Government for the benefit of those whom they regarded as possessing German nationality at the material dates. It would be a breach of faith to those for whom the fund was negotiated and among whom it was intended to be distributed to allow others to participate in it.
We think it is our duty to put this matter right and that is the reason that this present Order was made. I hope, 502 on reflection, that my hon. and learned Friend the Member for Northwich will see his way to withdrawing his Prayer.
§ Mr. G. R. Mitchison (Kettering)
What this Order purports to do is to put in the wordsat any timebefore the wordsbefore the dateand the date is the date of the British Nationality Act, 1948. The rest of the sentence, as the hon. Gentleman explained, is "any person who is a British subject" solely by virtue of the Act of Anne. All I am asking is, what difference does this Order make?
§ Mr. Thomas
I thought that my hon. and learned Friend had clearly explained to the House the meaning. I am surprised that the hon. and learned Gentleman the Member for Kettering (Mr. Mitchison) does not understand it. It makes the difference that there is one claimant and one claimant only who would be affected by this Amendment—and that is Mr. von Preussen. In fact, if other people were allowed to put their claims forward I agree that there might be a real injustice because many people in this country were British citizens for many years, probably for years before the war, but it may be that at one time they may have been British citizens by virtue of the 1705 Act.
§ Mr. Mitchison
I am not talking about that. I am asking what difference it makes. What is the result of putting in these words? I should have thought that they made no difference whatever.
§ Mr. Thomas
I will try, if I can, to explain. I do not know whether the hon. and learned Member for Kettering has the 1958 Order before him. He will see that the 1958 Order excluded individuals who were British subjects before the date of the commencement of the British Nationality Act only by virtue of the 1705 Act.
The determination of the Commission was that Mr. von Preussen was a British subject not only by virtue of the 1705 Act, but also by Certificate of Naturalisation. This Amendment, inserting the words "at any time" means 503 that anyone was excluded who at any time before the date of the commencement of the Nationality Act of 1948 was a British subject only under the provisions of the Act of 1705.
§ Mr. Eric Fletcher (Islington, East)
To enable the House to reach a decision on the merits of the matter, could the Minister say whether it is correct as stated in The Times today, that Prince Frederick reacquired German nationality as a German subject in 1953?
§ Mr. David James (Brighton, Kemptown)
Will my hon. Friend answer what I believe is the crucial question, asked by the hon. Member for Orkney and Shetland (Mr. Grimond)? Had Prince Frederick been naturalised in 1945, prior to the nationalisation of his land, would his claim stand or not? I believe that the whole thing hangs on that.
§ Mr. Thomas
Yes. I would say that his claim would stand. Under this Order it would not, but if he had been naturalised in 1945 he would have succeeded on a different point before the Commission.
§ Mr. Loughlin
Would the Joint Under-Secretary clarify one point for me? Do I understand him to say that at the time that the agreement between the British Government and the Polish Government was made Prince Frederick was a German subject and considered himself to be a German subject at that time?
§ 10.50 p.m.
§ Mr. Jeremy Thorpe (Devon, North)
I rise simply because the Joint Under-Secretary has so muddled the issue that I want to see if we can straighten it out a little. I must straight away declare an interest. I am one of the keenest supporters of the Hanoverian succession. The great advantage of the Hanoverian kings was that the first half a dozen of them could speak no English. It was because of that defect that our system of Parliament flourished, the Cabinet system flourished, and the power of the Executive grew. I believe that when King George II was told at Richmond that his father had died he turned over and said, "That is one big lie"!
§ Mr. Thorpe
I will now get in order and say this. If it be correct that British citizenship pursuant to the Act of 1705 is of no effect for the purposes of claiming on the Polish compensation fund—I understand that that is the position as a result of the Order in Council passed in April, 1958—we fall back on the question of naturalisation. That in itself is sufficient for the purposes of a claim, providing that the person was naturalised at the operative date, the operative date being the date when the Agreement was made with the Polish authorities.
§ The Solicitor-General (Sir Jocelyn Simon) indicated dissent.
§ Mr. Thorpe
The Solicitor-General shakes his head. Is it not correct that that date was 8th March, 1946?
§ The Solicitor-General
I shook my head because that is the relevant date under the Order. It is the relevant date, because that was the date of nationalisation.
§ Mr. Thorpe
If that be correct, the next question is this. Was the person in question naturalised for the purpose of claiming compensation for the nationalisation on the relevant date, which was 8th March, 1946?
§ Mr. Thorpe
The Agreement was subsequently signed in 1954; the hon. and learned Member for Northwich (Mr. J. Foster) is correct. But the relevant date, the date upon which Prince Frederick became a British subject, either by birth or by naturalisation, was 8th March, 1946. I think that is correct.
§ Mr. Thorpe
Of course it does. As I understand, the person in question—Prince Frederick—received his naturalisation papers on only 2nd October, 1947. Therefore, he was not a naturalised British subject at the relevant date. If that be so, why was the Commission prepared to entertain his claim? Is it sug- 505 gested by the Government that the Commission was wrong in law in suiting somebody who had no status and, therefore, had no right to be suited?
Do they suggest that this amendment is to be introduced so that the Executive may remedy an alleged defect on the part of the judiciary? Is that the position? If so, it seems to me to be a very dangerous doctrine. Or are they saying, "No. In fact, it was correct, and this person was entitled to have his claim heard because he qualified according to the Commission's view, but, since his valid qualification was not in the mind of the Government when they were negotiating the global sum, they did not claim, and, therefore, according to the Government, they must make up for that deficiency on their part by protecting other persons so that they will not suffer from the negligence of which they, the Government, are guilty"? If the latter, that, again, seems to be a very dangerous precedent.
Either the claimant has a claim in law—and he cannot have a claim unless he was a naturalised citizen at the relevant date, which was 8th March, 1946—or he has no claim in law by reason of the fact that he was not naturalised at the operative date. It is one or the other. If the Commission has been wrong in law, it is a question of legal process and remedy, not of the intervention of the Executive. If, on the other hand, the Commission was right in law, but it is a political inconvenience which now faces Her Majesty's Government, then, again, it is a very serious intervention on the part of the Executive. In either case, I suggest to the House that this is not the way to remedy either an alleged legal defect or a political oversight on the part of the Government.
I submit to the House that this Order sets an extremely dangerous precedent. It is admitted by the hon. Gentleman that it can possibly cover only one person, and it seems to me that that in itself is a highly dangerous precedent for any Government to introduce. Thereforce, unless the Solicitor-General, if he is to reply, can satisfy us that there are reasons for introducing this Order apart from remedying an alleged legal defect of protecting the Government from an alleged act of political negligence—unless there be a third and better explanation—we should pray against this Order.
§ 10.58 p.m.
§ Sir Derek Walker-Smith (Hertfordshire, East)
I propose to be brief. I recognise that those words may strike a slightly ominous note because my hon. Friend the Under-Secretary of State started with similar words and, in the event, regaled us with a very long speech of which, unfortunately, the persuasive effect seemed to be in inverse ratio to its length.
I have two interests in this matter, a general and a particular interest. The general interest is one which I share with every hon. Member, that is, a concern that the legislative processes for which we all jointly and severally are responsible are not abused, and abused they certainly would be if any form of legislation, be it Act of Parliament or Statutory Instrument, which, after all, has the force of an Act of Parliament, were directed either in its purpose or in its effect against a specific individual or had the effect of depriving that individual of something to which the law says he is entitled or may say he is entitled or may be in process of saying that he is entitled. That is a general interest which we all share, and it is of itself quite enough to engage the attention of any hon. Member whether he has any other interest or not.
The particular interest I have in this case is that the gentleman against whom the Statutory Instrument appears to be specifically and discriminatorily directed is a constituent of mine. He has lived for a long time in East Hertfordshire. He is deservedly popular and held in high regard by the community among whom he lives.
It may well be said that his quality and attributes do not give him title to any special consideration, and of course they do not and nobody suggests it, but I suggest that they might afford him some special protection, if protection be needed, against his being singled out for discriminatory treatment. Of course, protection of that sort ought not to be required. No person living in this country should need any more protection than that afforded to every citizen by the fact that here it is our pride and tradition to live according to the law and by the rule of law. I think that it is clear from 507 what has been said in this case that there is here a departure from those principles.
The House should be quite clear what is our function in this matter. Our function, of course, is not to determine the issue of a specific individual claim. The House of Commons does not do that. It is concerned with the general principle of the application of the law. Specific questions such as that are reserved for the courts, or such other quasi-judicial process as may be set up, as in this case.
But if the House of Commons is not concerned with the individual case, how much less are Her Majesty's Government concerned with individual cases? Her Majesty's Government must not usurp the jurisdiction of the courts and impose their decision upon them. That, surely, is flying in the face of the whole of our constitutional and traditional practices in this country.
We are not, therefore, concerned with the legal complications as to whether my constituent has made out his case or not. We are not the forum in which that is decided. There is a procedure prescribed and it is quite clear—the one thing which emerged clearly from my hon. Friend's speech was this—that my constituent has claim, a right to claim, under Article 7 of the Regulations of 1956. That is beyond dispute.
What follows from that is that his claim then takes its proper course and is adjudicated upon by the Commission set up for that purpose. That Commission has used its jurisdiction and has been seized of this matter and has made it provisional award.
Perhaps whoever is to reply for the Government will answer quite specifically whether the Government think that my constituent has a good case, or that he has a bad case. If they feel that he has a good case, why do they want to deprive him of his claim? If they think he has a bad case, why do they not let the law take the course and review, which, my hon. Friend said, was still awaited? Let us have an answer to that question so that we may see why it is that it has been necessary to take this course.
I promised not to be long and I shall adhere to that promise. Let me, therefore, conclude by saying that it is 508 apparent that in this case the Government have usurped a jurisdiction which does not belong to them in interfering in a matter which is taking its proper course through the appropriate judicial or quasi-judicial processes. It is also quite clear that they have offended against the constitutional principle in bringing forward a Statutory Instrument directed specifically and discriminatorily against one particular individual, and also taking away from him a right which the law may be in process of giving to him.
I am sure that, if it is true to its traditions, the House of Commons will agree that it is unworthy of the Government to propose such a measure. It would be unworthy of the House of Commons to endorse this Order, and I ask my right hon. Friends to take it back.
§ 11.5 p.m.
§ Mr. Sydney Silverman (Nelson and Colne)
It is with some diffidence that I come to the assistance of the Government against the right hon. and learned Member for Hertfordshire, East (Sir D. Walker-Smith). I do not think that they require my assistance, and it is an unaccustomed situation for me.
I agree with the right hon. and learned Gentleman that this is the House of Commons and not the House of Lords. We are not here to determine individual rights in litigated cases. That is not our business. I thought that having made that point so effectively the right hon. and learned Gentleman was a little inconsistent in then calling upon the Government to say whether they thought this gentleman had a good case or a bad case.
The right hon. and learned Gentleman cannot have it both ways. Either we are not concerned with that question, or we are. I think that the right hon. and learned Gentleman was right when he said that we were not, and I think that he was wrong to ask the Government to usurp the function of the courts, because he was explaining exactly why we should not do that.
If we are not concerned with that, with what are we concerned? We are concerned with the natural justice of the case. If it could be shown that this Order was in conflict with natural justice, I would join with other right hon. and hon. Gentlemen in opposing it. The right hon. and learned Gentleman says 509 that it is against natural justice because it is discriminatory, because it is directed against some individual person, and because that individual person has vested rights which this Order may undermine. I think that it is established that he has no vested rights in the first place.
I say by way of an aside that the right hon. and learned Gentleman seemed to me to be mistaken in claiming that this gentleman is a constituent of his. I do not see how a German subject can be a constituent of the right hon. and learned Gentleman. He is a German subject now. [HON. MEMBERS: "He has been naturalised."] My hon. Friend the Member for Ebbw Vale (Mr. M. Foot) referred to Mr. Wedgwood Benn. I hope that we are not heading for another electoral inquiry which would unseat the right hon. and learned Gentleman for having been elected by German subjects.
What is the natural justice of the case? The Government succeeded in negotiating with the Polish Government a limited, narrow, and probably inadequate scheme of compensation. When they negotiated it, they had in mind that the Polish Government had nationalised certain property belonging to British subjects, and they negotiated a figure having that in mind, and meaning to protect British subjects from that expropriation, to which the Polish Government agreed, and the compensation was the result.
At that time this gentleman did not regard himself as a British subject. [HON. MEMBERS: "He did."] At that time he did not. At the time when the agreement was negotiated he did not regard himself as a British subject. Until a decision was made in another case in the House of Lords, it never occurred to him that he was a British subject.
§ Mr. Peter Kirk (Gravesend)
Von Preussen was naturalised a British subject in 1947. The decision in the House of Lords was made in 1956, nine years later. The negotiation took place in 1954, seven years after he was naturalised a British subject.
§ Mr. Silverman
At the relevant time the property was expropriated, and in respect of which this agreement was being made, this gentleman did not regard himself as a British subject. He never re- 510 garded himself as a British subject at all. It was because he did not regard himself as a British subject that he applied to be naturalised.
§ Mr. Silverman
It was only after that that it was determined by a decision in the House of Lords that he had been a British subject all the time. He did not know it. The Government did not know it. The Polish Government did not know it. Nobody knew it.
In those circumstances, I find it difficult to understand what validity the naturalisation certificate has, because after the decision in the House of Lords it was clear that the man had been, much to his surprise, a British subject the whole time. We cannot naturalise British subjects; they do not need it. A certificate of naturalisation granted to a British subject has no validity at all. In those circumstances I am amazed that the Compensation Commission ever made a provisional award in his favour.
Never mind; it did, and now the suggestion is made that a great injustice is being done because the people who are to get only limited compensation in any case are to be protected from having that limited and inadequate compensation reduced in order to pay a large sum to somebody who never thought that he was entitled to it until the House of Lords decided that he was.
§ Mr. J. Foster
I believe that the hon. Member said that if Mr. von Preussen had a right he would oppose the Order in Council. Does not he think that Mr. von Preussen, when the Order in Council was passed, had a right to have his provisional claim reviewed by the Commission?
§ Mr. Silverman
He is having it reviewed by the Commission. [HON. MEMBERS: "No."] The ultimate one—[HON. MEMBERS: "No."] I expressed myself badly. I believe that what the hon. and learned Gentleman is asking me is this: having got a provisional award in his favour, and being therefore entitled to have the provisional award reviewed, ought his right to have it reviewed to be removed from him by administrative action? That is the whole question that we are deciding, and to decide it we have to look at what the 511 results will be—[HON. MEMBERS: "NO."] If we are thinking about natural justice we have to look at what the results of what we propose to do will be. I do not think that there is anything objectionable in that statement.
If we could go back to the Polish Government and negotiate a special award in his favour it might be a completely different matter, but if I am called upon to say whether the Order is right or wrong I shall do what the right hon. and learned Gentleman invited me to do, look not only at the individual case but at the global effect of our doing one thing or the other.
I say that if the result of annulling this Order is to enable this gentleman to obtain, out of a limited compensation fund and at the expense of a number of people poorer than himself, a very large sum of money, it is ludicrous to say that it would be in accordance with natural justice. Of course it would not. This gentleman was a British subject for perhaps five or six years—[HON. MEMBERS: "He still is."] No; he is a German subject now. [HON. MEMBERS: "He is both."] My hon. Friend the Member for Islington, East (Mr. Fletcher) asked the Minister whether it is true that this man had now reacquired German nationality, and the answer was, "Yes". So we are asked to deprive British subjects of very limited and inadequate compensation in order to give something to a man who has been a British subject for four or five years—
§ Mr. John Rodgers (Sevenoaks)
Mr. von Preussen enjoys dual nationality. He is still a British subject, but he is also a German citizen.
§ Mr. Silverman
I do not know why the hon. Member interrupted me to say that. A man who enjoys dual nationality enjoys two nationalities. The two nationalities in this case are British and German.
Therefore, what is wrong with my statement that this man is now a German citizen? I see no reason why a man who sustained half a British nationality for four or five years, and I am not prepared to regard it as sustained, should deprive other people of part of a limited award in order that a large sum should be paid 512 to him when he was not in contemplation at the time—
§ Mr. Grant-Ferris (Nantwich)
Would the hon. Gentleman not agree that Mr. von Preussen is a constituent of my right hon. and learned Friend the Member for Hertfordshire, East (Sir D. Walker-Smith)? He has denied that he was and suggested that my right hon. and learned Friend might become unseated through his vote.
§ Mr. Silverman
The hon. Gentleman may think that of some importance. From my point of view, if the gentleman voted for the Prime Minister in this country and for Dr. Adenaeur in West Germany it would not increase his claim to my personal support.
I should have thought that having regard to the purpose for which the fund came into existence, and the number and the category of persons for whose benefit it came into existence, it would be preposterous to allow this gentleman to benefit from it.
§ 10.17 p.m.
§ The Solicitor-General (Sir Jocelyn Simon)
This House is traditionally and rightly solicitous of the acquired rights of any citizen. It is also equally anxious that other people should not be unjustly prejudiced in the claims which they are enabled to put forward with the approbation of this House.
From the debate it is clear that there are two issues. One has been principally canvassed, but the other has also been raised. The first is, is this Order which is prayed against just in principle, and, secondly, has Mr. von Preussen suffered any particular injustice by the way matters have fallen out; and if he has, is the proper way to meet it to allow him to share in a limited fund in which no one has contended he was intended to share, or is he properly compensated by a generous contribution towards his costs?
I turn to the main subject in which the House is obviously interested. Is the Order, in principle, just? The first thing which I think has been clearly recognised is that in so far as Mr. von Preussen succeeds in his claim it must be at the expense of others for whom this limited fund—out of which a limited 513 dividend, a very limited dividend only of the claims can be met—was intended. It was certainly never the intention of the British or the Polish Government that anyone in the position of Mr. von Preussen, or any of the other German princes should share in the fund. I am told that that was made perfectly plain throughout the negotiations.
May I, then, look at the dates, because they are rather important. The date of the nationalisation was very close to the one given by the hon. Gentleman opposite, it was 10th April, 1946. That is the relevant date for the purpose of these Orders, and it is the relevant date, also, for the purpose of the agreement with the Polish Government; and the property had to belong to a person who was a British subject on the relevant date. In other words, in 1946. On that date neither Mr. von Preussen nor any of the German princes were British subjects, except by virtue of the Act of 1705, which was the ground for exclusion in the 1958 Order. It was not until 27th October, 1947, that Mr. von Preussen received his certificate of naturalisation.
I ought to make the matter quite plain. He is a dual national. He is a British subject, and indeed, by the decision of the House of Lords he has been a British subject from his birth. I understand—I know only what I have read, but my hon. Friend said what he believed to be right—that Mr. von Preussen is also a German subject, but he is unquestionably a British subject. However, that was not known in 1946, it was not known in 1947, or, of course, he would not have been given a certificate of naturalisation.
It was not known until 5th December, 1956, when, in the case of the Attorney-General against Prince Ernst Augustus of Hanover it was declared that he and some 400 other descendants of the Electress Sophia were British subjects. It is perfectly plain that although those 400 people, including Mr. von Preussen, were then declared to have been British subjects all their lives, none of them had any sort of moral claim on the fund which had been negotiated by the British Government. It would have been manifestly unjust to the other claimants, for whom this sum was negotiated, to have admitted their claim.
514 Nevertheless, on 12th April, 1957, twelve days before the closing date for claims, nine descendants, as I am told, of the Electress Sophia put in claims. They included Mr. von Preussen. So clearly unjust would it have been to have admitted those claims that there was strong pressure both in the public Press and in this House to exclude them; and it was in those circumstances that, amid general approbation, the 1958 Order was made on 3rd April, 1958—nearly a year after the claims had been submitted to the tribunal, nearly a year after all these princes had gone to the tribunal to submit their claims and asking to have them arbitrated upon.
No one objected that that was retrospective, although, of course, it was just as retrospective as the present case. No one objected that it was discriminatory, although it was just as discriminatory as the present one, unless one can argue that it is more discriminatory to discriminate against one than against nine, which I do not imagine anyone would put forward. No one objected that it was unjust, because it was clearly just. None of these people were people for whom this sum had been negotiated nor would their claims for a moment have been countenanced by the Polish Government.
The other princes withdrew their claims. Prince Frederick continued because he had two points. The first was that the date of nationalisation was after he became a British subject by naturalisation. I was asked what would have happened if he had been naturalised before his property was taken. The answer is that if he had been naturalised before his property was taken in 1946 this Order would not have been made and would never have been submitted to the House because he would have been within the category for which we negotiated—
§ Mr. J. Foster rose—
§ The Solicitor-General
I hope that my hon. and learned Friend will excuse me, because I have very little time.
§ Mr. Foster
If a review commission finds that the property was nationalised after his naturalisation, this Order excludes him.
§ The Solicitor-General
That is true. As I said, the first point is that the property was nationalised before the date of his naturalisation, and of course it is on that that his principal costs have been incurred—the costs of discovering what the position was in Poland. But the provisional adjudication of the tribunal on this was that the date of nationalisation was a year before he was naturalised.
§ The Solicitor-General
The review may say that it is not true, but as far as I know it is not now seriously contended that his property was nationalised after the date. There is a definition in the agreement as to what is the relevant date.
Secondly, he put forward an argument that he was a British subject not only by virtue of the 1705 Act but also by virtue of his certificate of naturalisation. On 9th February this year there was a provisional determination against his first contention but in favour of his second; and I think that the House will agree that, whatever else one may say, he succeeded on the purest technicality. That is subject to review, and other claimants are taking the point which was put by the hon. Member for Nelson and Colne (Mr. S. Silverman) that since he was a British subject from his birth, the certificate of naturalisation was a nullity. I suppose that any lawyer, and indeed others, in the House, would say that there is a good deal to be said for that contention.
I do not think that it is right for me to answer the point which was put by my right hon. and learned Friend and to give my own views on that, because
§ it is a matter on which the tribunal will adjudicate. The review on that point would still be open if he continued. I say that advisedly, because the indications which we have been given are that he intends to continue despite this Order. He has a point which he feels that he can argue, and therefore my observation was not a wild observation—
§ Mr. Geoffrey Hirst (Shipley)
Sheer prejudice. My right hon. and learned Friend should be ashamed of himself.
§ The Solicitor-General
I am giving my hon. Friend and the House some facts. He should not be excited merely because I present him with some facts. The point about the review is that there is no appeal; it is final. That is the answer to the hon. Member for Devon, North (Mr. Thorpe).
It is not a question of interfering with a legal process or a legal remedy. If the review upholds this claim, there is an immediate payment out to the claimant here, Mr. von. Preussen; and that would be manifestly unfair to other claimants and also unjust to the other German princes who have been excluded. They, equally, were not naturalised in 1946. It is not true, as my hon. and learned Friend put it, that the umpire is changing the rules in the middle of the game. This is not a game. This is a matter in which a great many British subjects in quite humble circumstances have valid claims which ought to be met. I therefore ask the House to approve the Order.
§ Question put:—
§ The House divided: Ayes 35, Noes 100.517
|Division No. 267.||AYES||[11.30 p.m.|
|Agnew, Sir Peter||Hicks Beach, Maj. W.||Rees-Davies, W. R.|
|Bennett, F. M. (Torquay)||Hirst, Geoffrey||Talbot, John E.|
|Berkeley, Humphry||Hobson, John||Tapsell, Peter|
|Biggs-Davison, John||Holt, Arthur||Teeling, William|
|Black, Sir Cyril||Iremonger, T. L.||Thornon-Kemsley, Sir Colin|
|Cooke, Robert||Johnson, Eric (Blackley)||Thorpe, Jeremy|
|Courtney, Cdr. Anthony||Kirk, Peter||Turner, Colin|
|du Cann, Edward||Kitson, Timothy||Walker-Smith, Rt. Hon. Sir Derek|
|Fisher, Nigel||Longden, Gilbert||Webster, David|
|Foster, John||McLaren, Martin|
|Goodhew, Victor||More, Jasper (Ludlow)||TELLERS FOR THE AYES:|
|Grant-Ferris, Wg. Cdr. R.||Mott-Radclyffe, Sir Charles||Mr. J. Rodgers and Mr. Channen.|
|Grimond, J.||Pickthorn, Sir Kenneth|
|Allason, James||Bossom, Clive||Box, Donald|
|Barter, John||Bourne-Arton, A.||Boyd-Carpenter, Rt. Hon. John|
|Bingham, R. M.||Bowles, Frank||Brown, Alan (Tottenham)|
|Browne, Percy (Torrington)||Holland, Philip||Prior, J. M. L.|
|Buck, Antony||Hopkins, Alan||Pym, Francis|
|Carr, Compton (Barons Court)||Hornby, R. P.||Quennell, Miss J. M.|
|Chataway, Christopher||Hornsby-Smith, Rt. Hon. Patricia||Rawlinson, Peter|
|Chichester-Clark, R.||Hughes-Young, Michael||Redmayne, Rt. Hon. Martin|
|Clark, Henry (Antrim, N.)||James, David||Rees, Hugh|
|Cleaver, Leonard||Johnson Smith, Geoffrey||Ridley, Hon. Nicholas|
|Collaret, Richard||Jones, Elwyn (West Ham, S.)||Rippon, Geoffrey|
|Cordeaux, Lt.-Col. J. K.||Kershaw, Anthony||Roots, William|
|Craddock, George (Bradford, S.)||Litchfield, Capt, John||Russell, Ronald|
|Cunningham, Knox||Longbottom, Charles||St. Clair, M.|
|Curran, Charles||Loughlin, Charles||Silverman, Sydney (Nelson)|
|Drayson, G. B.||Low, Rt. Hon. Sir Toby||Simon, Rt. Hon. Sir Jocelyn|
|Elliot, Capt. Walter (Carshalton)||Lucas-Tooth, Sir Hugh||Smith, Dudfey(Br'ntf'rd & Chiswiek)|
|Elliott, R. W. (N 'castle-upon-Tyne, N.)||McInnes, James||Steward, Harold (Stockport, S.)|
|Emery, Peter||McLaughlin, Mrs. Patricia||Storehouse, John|
|Farr, John||Macleod, Rt. Hn. Iain (Enfield, W.)||Thomas, Peter (Conway)|
|Fletcher, Eric||Macmillan, Maurice (Halifax)||Thompson, Richard (Croydon, S.)|
|Fletcher-Cooke, Charles||Macpherson, Niall (Dumfries)||Vosper, Rt. Hon. Dennis|
|Foot, Michael (Ebbw Vale)||Marples, Rt. Hon. Ernest||Walder, David|
|Fraser, Ian (Plymouth, Sutton)||Marten, Neil||Wall, Patrick|
|Gammans, Lady||Maxwell-Hyslop, R. J.||Whitelaw, William|
|Gibson-Watt, David||Montgomery, Fergus||Williams, Dudley (Exeter)|
|Godber, J. B.||Morrison, John||Wilson, Geoffrey (Truro)|
|Green, Alan||Noble, Michael||Wood, Rt. Hon. Richard|
|Gresham Cooke, R.||Page, John (Harrow, West)||Woodnutt, Mark|
|Hannan, William||Page, Graham (Crosby)||Yates, William (The Wrekin)|
|Harrison, Col. Sir Harwood (Eye)||Pannell, Norman (Kirkdale)|
|Harvey, Sir Arthur Vere (Macclesf'd)||Pearson, Frank (Clitheroe)||TELLERS FOR THE NOES:|
|Hiley, Joseph||Percival, Ian||Mr. E. Wakefield and Mr. Finlay.|
|Hill, J. E. B. (S. Norfolk)||Pitt, Miss Edith|
|Hinchingbrooke, Viscount||Powell, Rt. Hon. J. Enoch|